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California Penal Code § 261.5 – Statutory Rape-Unlawful Sex

California Penal Code § (Section) 261.5 – Statutory Rape-Unlawful Sex

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California Penal Code (CPC) §261.5Statutory Rape – Statutory Rape occurs in California when anyone has sexual intercourse with a person under eighteen. The victim cannot be the guilty person's spouse.

Statutory Rape is punished in several ways. If, for example, you're eighteen and the other person is within two years of your age, you can serve up to six months in a county jail and pay thousands in fines (including a civil penalty), or receive both a fine and prison. If you're over twenty-one and the other person is under sixteen, you can serve up to four years in state prison and pay fines exceeding $25,000 (including a civil penalty) or you can be sentenced to both a fine and prison. This makes Statutory Rape a “wobbler”[1] crime; the prosecution can charge you with a Misdemeanor or a Felony, depending on the unique facts of your case.

This page focuses on Statutory Rape of a Minor within Three Years of Your Age (CPC §§261.5(a) and (b)), Statutory Rape of a Minor More than Three Years Younger than Your Age (CPC §§261.5(a) and (c)), and Statutory Rape of a Minor Younger than Sixteen When You Are Twenty-One or Older (CPC §§261.5(a) and (d)).

What Does California Penal Code §261.5 (Statutory Rape) Prohibit?

In sum, to be guilty of Statutory Rape under CPC §261.5, the prosecution must prove that:

  • You had sex with someone; AND,
  • The other person was not your spouse; AND,
  • The other person was younger than eighteen.

Defining “Statutory Rape” Under California Penal Code §261.5

To convict you under CPC §§261.5(a) and (b), Statutory Rape of a Minor within Three Years of Your Age, the prosecution must prove the following beyond a reasonable doubt:

  • Sexual intercourse: You had sexual intercourse[2] with another person; AND,
  • Not Your Spouse: The other person was not your spouse at the time of the sexual intercourse; AND,
  • Person Wasn't Eighteen: The other person wasn't eighteen[3]; AND,
  • Not More Than Three Years Younger: The other person wasn't more than three years younger than your age.

Note: Minors can also be charged with violating CPC §261.5, if the right facts are in place.[4] However, the prosecution must prove that you didn't actually and reasonably believe the other person was eighteen.[5]

Example: An eighteen-year-old high school senior, Defendant Donna, has sex with her boyfriend, Victim Vincent, on Prom Night. Vincent is seventeen on the night of Prom and turns eighteen the next morning. Vincent's siblings learn of the sexual intercourse on Vincent's birthday. They tell Vincent's very religious parents, who report Donna for Statutory Rape. Donna insists that Vincent was old enough (or at least close enough in age) to have sex, since it was his birthday next morning. Should Donna be convicted?

Conclusion: Donna had sex with Vincent, who, while very near eighteen years, wasn't yet old enough to have sex under California law. The law measures age from the minute one turns a year older – meaning that Vincent wasn't old enough to have sex with Donna until his birthday (on the morning after Prom). Therefore, since Vincent was actually seventeen at the time of the sexual intercourse and the couple was also unmarried, Donna should be convicted of Statutory Rape.

To convict you under CPC §§261.5(a) and (c),[6] Statutory Rape of a Minor More than Three Years Younger than Your Age, the prosecution must prove the following beyond a reasonable doubt:

  • Sexual Intercourse: You had sexual intercourse with another person; AND,
  • Not Your Spouse: The other person was not your spouse at the time of the sexual intercourse;

              AND

  • Other Person Wasn't Eighteen: The other person was younger than eighteen; AND,
  • More Than Three Years Younger: The other person was more than three years younger than your age.

Example: Defendant Douglas, nineteen, meets and begins to court Victim Val, who is fifteen. They have sex soon after their first date. Douglas proposes to Val. She accepts and they plan their wedding. Val's parents don't know about Douglas, however, and when they learn that Val and Douglas are engaged, and already have had sex, they report Douglas for Statutory Rape. Douglas is arrested and charged under §§261.5(a) and (c) but insists he's innocent because Val is his fiancée. Should he be convicted?   

Conclusion: Douglas had sex with a fifteen-year-old girl who was approximately four years younger than himself. His defense was that Val was betrothed to him but that doesn't excuse their sexual contact; Val wasn't yet married to Douglas. Additionally, the age of consent in California is eighteen, not fifteen, so Val's “consent” is meaningless. Therefore, though Val thought she was old enough to consent to sex and marrying, she wasn't old enough to have sex with Douglas or to marry him. Douglas should be convicted.  

To convict you under CPC §§261.5(a) and (d),[7] Statutory Rape of a Minor Younger than Sixteen When You Are Twenty-One or Older, the prosecution must prove the following beyond a reasonable doubt:

  • Sexual Intercourse: You had sexual intercourse with another person; AND,
  • Not Your Spouse: The other person was not your spouse at the time of sexual intercourse; AND,
  • You Were Twenty-One Or Older: You were at least twenty-one years old at the time of the sexual intercourse; AND,
  • Other Person Younger Than Sixteen: The other person was under the age of sixteen years at the time of the sexual intercourse.

Example:  Defendant Darren, twenty-one, meets Victim Veronica one weekend on a college campus that often hosts events involving local groups. This includes high schools. The two hit it off; Darren, assuming Veronica is a college classmate, invites Veronica to dinner and a movie. Veronica accepts but won't so much as hold Darren's hand when on their date. Eventually, Darren learns that Veronica is only fifteen, part of a high school group that used his college campus for a weekend event. Veronica's parents, hearing about the date from their daughter, want to charge Darren with Statutory Rape under CPC §§261.5(a) and (d). Should Darren be convicted of the accusation?

Conclusion: Darren, a twenty-one year old adult, was with a fifteen-year old. Veronica wasn't married to Darren. These are elements of §§261.5(a) and (d). However, while Darren might defend himself on the grounds that it was reasonable to assume Veronica was a college student (and, therefore, older than eighteen, presumably), there was no sexual intercourse between the two. Darren must be acquitted.  

Penalties For Statutory Rape Under CPC §261.5

As note previously, Statutory Rape is punished in several ways, depending on the facts of the case.

  1. Statutory Rape of a Minor within Three Years of Your Age (CPC §§261.5(a) and (b))

If you're convicted of having sex with a minor within three years of your age, you face up to six (6) months in a county jail, or a fine of up to $1,000 (one-thousand dollars), or a fine and imprisonment.[8]

  1. Statutory Rape of a Minor More than Three Years Younger than Your Age (CPC §§261.5(a) and (c))

If you're convicted of having sex with a minor more than three years younger than yourself, you face up to three (3) years in a state prison[9] or a fine of up to $10,000 (ten-thousand dollars) or both a fine and imprisonment.[10]  

  1. Statutory Rape of a Minor Younger than Sixteen When You Are Twenty-One or Older (CPC §§261.5(a) and (d))

If you're twenty-one or older and you have sex with a minor who's under age sixteen, you face up to four (4) years in state prison[11] and a fine of up to $10,000 (ten-thousand dollars), or fines and prison.[12]  

  1. Civil Penalties

Civil penalties may also be assessed in Statutory Rape cases. These are amounts you can be made to pay in addition to the ordinary fines called for in the Penal Code (above).

If you're convicted of Statutory Rape of a minor within two years of your age, you can be fined an additional $2,000 (two-thousand dollars).[13] If the minor is at least two years younger than your age, the fine increases to $5,000 (five-thousand dollars).[14] If the minor is at least three years younger than your age, the fine doubles to $10,000 (ten-thousand dollars),[15] and if you're twenty-one or older and have sex with a person younger than sixteen, the fine skyrockets to a maximum of $25,000 (twenty-five-thousand dollars).[16]

Note: The statute calls for adults to pay additional amounts, if any, not minors.[17]

  1. Sex Offender Registration

 

While several sex crimes require Sex Offender registration, and must be updated if you move, current California law doesn't require that someone convicted of Statutory Rape register as a Sex Offender.[18]

 

Defenses To Statutory Rape Under CPC §261.5

The two basic defenses to a conviction under California's Penal Code §261.5 are:

You Didn't Have Sexual Intercourse With The Minor

Example: Twenty-three-year old Defendant Darnell is attracted to his neighbor's seventeen-year old daughter, Victim Vicki. Darnell makes a pass at Vicki but she rejects him. Darnell, embarrassed, tells friends at a local tavern that he had sex with Vicki anyway. Bartender overhears Darnell's story and calls Vicki's parents. The parents report Darnell for Statutory Rape. Darnell is arrested and charged under CPC §§261.5(a) and (c). Should Darnell be convicted of the crime?

Conclusion: While Darnell may have attempted to develop a relationship with Vicki, he didn't succeed. He then lied about it rather than admit the truth. Therefore, while Darnell did not behave at all well, he can't be convicted of Statutory Rape because he actually didn't have sexual intercourse with the minor.   

You Honestly, Reasonably Didn't Think The Minor Was Under Eighteen

Example:  Seventeen-year old Victim Vernon takes his very realistic-looking fake driver's license to a bar, where he meets twenty-one-year old Defendant Don. Vernon uses his illegal license to buy several alcoholic drinks for Don and for himself. He tells Don that he's a twenty-two-year-old college student (which his license seems to confirm) and that he wants to take Don back to his apartment but can't because he lives with other students. Don invites Vernon back to Don's apartment. They have sex and Vernon leaves. Don, however, is shocked to be arrested for violating CPC §§261.5(a) and (c) after Vernon goes home and admits to his parents what happened. Don says he honestly didn't think Vernon was under eighteen and doesn't see why he should've thought otherwise. Should Don be convicted?

Conclusion: Don had sexual intercourse with someone who wasn't his spouse. Vernon wasn't eighteen when he had sex with Don. Vernon, however, used an expensive false identification card to represent himself as being a legal adult. He then bought alcohol several times for Don and himself and represented that he was a college student with roommates, which would reasonably explain why Vernon wouldn't take Don to his own home (where, of course, Vernon's parents would actually await   his return). Vernon, therefore, repeatedly represented through words and acts that he was old enough to have sex with Don and presented physical evidence to prove it. Since Don could honestly and reasonably believe that Vernon was years older than eighteen under the circumstances, Don shouldn't be convicted of Statutory Rape.

 

 

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with CPC §261.5   and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Statutory Rape: Lewd Acts On A Child (CPC §288(a)), Oral Copulation On A Minor (CPC §§288a(a) and (b)(1)), Rape/”Date Rape” (CPC §261(a)), Sexual Battery (CPC §243.4(a)), Lewd Conduct in Public (CPC §647(a)) and Indecent Exposure (CPC §314).

Lewd Acts On A Child

The crime of Lewd Acts On A Child (CPC §288(a)) occurs whenever an adult engages in a sex act with a minor under fourteen. You must intend on “arousing, appealing to, or gratifying the lust, passions, or sexual desires of [yourself] or the child”[19] when the act occurs in order to violate the law. The crime is related to Statutory Rape because Lewd Acts On A Child can include Statutory Rape, which would allow the prosecution to charge you with both in the same trial.

If you're convicted of Lewd Acts On A Child Under Fourteen, a Felony, the penalty may be:

  • A term of up to eight (8) years in state prison;[20] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[21] AND,
  • The duty to register as a Sex Offender for at least ten years.[22]

Note: Section 288 also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. Additionally, it is not a defense that the minor consented to the act.[23]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions – Lewd Acts On A Child

To convict you under §288(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing or you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. You acted intending to gratify your sexual desires or the desire of the child. Finally, the child was under fourteen at the time.

Example: Defendant Dina, an adult babysitter, is watching Victim Vidor, aged seven. Vidor scrapes a knee when he runs inside the house and falls onto a carpet. Dina treats the scrape by washing it with water and vigorously rubbing affected the skin. Later, when Vidor tells his parents that “Dina rubbed” him, Vidor's parents report Dina for Lewd Acts On A Child under §288(a). Should Dina be convicted?      

Conclusion: Dina willfully touched Vidor on his bare skin. Vidor was only seven at the time. However, Dina touched Vidor intending on treating a minor injury, not to gratify her sexual desires or the desires of Vidor. Dina, therefore, shouldn't be convicted of the accusation.

Oral Copulation On A Minor

 

Oral Copulation On A Minor (CPC §§288a(a) and (b)(1)) occurs whenever a person copulates the mouth of another person “with the sexual organ or anus”[24] of another if at least one person involved is a minor.

Since §288a(a) allows prosecutors to charge you with a Felony or a Misdemeanor, depending on the facts of your case, Oral Copulation On A Minor is a “wobbler”[25] offense. The crime is related to Statutory Rape because both Oral Copulation and Statutory Rape involve minors and sex acts, which can result in being charged with both crimes in the same trial.

If you're convicted of Oral Copulation On a Minor Younger than Eighteen, the penalty may be:

  • A term of up to one (1) year in a state prison;[26] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment;[27] AND,
  • The duty to register as a Sex Offender for at least ten years.[28]

Note: “Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.”[29]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions – Oral Copulation On A Minor

To convict you under CPC §§288a(a) and (b)(1), the prosecution must prove the following beyond a reasonable doubt:

You participated in an act of oral copulation with a person who was younger than eighteen.

Example:  Defendant Dain, who is eighteen, begins to date sixteen-year-old Victim Vanessa. One night Vanessa performs oral sex on Dain while they're in Vanessa's room. Vanessa's mother catches them in the act, drives Dain from the house and reports Dain for illegal oral copulation in violation of §§288a(a) and (b)(1). Dain says he didn't commit the crime because Vanessa's mother caught them before he had an orgasm. Should Dain be convicted?

Conclusion:  Dain engaged in an act of oral copulation with sixteen-year-old Vanessa. Violation of the law requires nothing more than oral sexual contact with such a person. Thus Dain should be convicted.

 

Rape

 

California's law against Rape (CPC §261(a)) applies when anyone has sexual intercourse with someone who's not his or her spouse without that person's consent. Absence of consent can be overcome in a number of illegal ways, including use of force or threats.

The statute lists several circumstances in which sexual intercourse is considered rape, such as sexual intercourse with someone who's unconscious owing to alcohol or drug intoxication. Rape is related to Statutory Rape because a minor is not legally considered capable of consenting to sexual intercourse.         

If you're convicted of Rape, a Felony, the penalty may be:

  • A term of up to eight (8) years in a state prison;[30] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[31] AND,
  • The duty to register as a Sex Offender for at least ten years.[32]

Note: A Rape conviction counts as a violent felony for purposes of California's “Three Strikes” system.[33]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer.

California Criminal Jury Instructions – Rape

To convict you under CPC §261(a), the prosecution must prove the following beyond a reasonable doubt:

You had sexual intercourse with someone who wasn't your wife or husband.[34] The other person didn't consent. Finally, you accomplished the intercourse using threats, fear or force directed at that person or someone else.

Example: Defendant Denton stabs ex-girlfriend, Victim Vi, and leaves her body in his bed for hours while he goes out drinking and waits for her to die. When Denton returns home he finds Vi dead and decides to have sex with her corpse.[35] After apprehending Denton and getting him to admit that he had sex with Vi's body, police charge Denton with Murder (CPC §187) and Rape under CPC §261(a). Should Denton be convicted of Rape?   

Conclusion: Though Denton accomplished sexual intercourse with someone who wasn't his spouse at the time, the fact that Vi wasn't living means that she had no will to overcome through force, fear or threats. Thus an element of the crime isn't present. While Denton's acts were reprehensible, the law requires that Vi be alive if Denton's to be convicted of Rape. Denton shouldn't be convicted of Rape.[36]

“Date Rape”

 

“Date Rape” is another form of Rape [see above] and, as such, is punishable under CPC §261(a). The difference between “Date Rape” and Rape is that “Date Rape” usually occurs between people who have some sort of personal relationship prior to an unlawful act of sexual intercourse. “Date Rape” is related to Statutory Rape because minors aren't legally capable of consenting to sexual intercourse, even if consent to a date has been provided.

If you're convicted of “Date Rape,” a Felony, the penalty may be:

  • A term of up to eight (8) years in a state prison;[37] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[38] AND,
  • The duty to register as a Sex Offender for at least ten years.[39]

Note: Rape convictions count as violent felonies for purposes of California's “Three Strikes” system.[40]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer –   and that's always guaranteed.

California Criminal Jury Instructions – “Date Rape”

To convict you under CPC §261(a), the prosecution must prove the following beyond a reasonable doubt:

You had sexual intercourse with someone who wasn't your wife or husband.[41] The other person didn't consent. Finally, you accomplished the intercourse using threats, fear or force directed at that person or someone else.

Example: Defendant Derek knows that his neighbor, Victim Virginia, takes care of her elderly father, who requires round-the-clock attention, and that Virginia usually has her groceries delivered as a result. One evening Derek offers to drive Virginia to the supermarket. Virginia accepts. However, when she gets into Derek's car, Derek locks the doors and tells her that he won't let her get back to her father unless she has sex with him. Virginia submits but immediately reports Derek for a “date rape” when she gets home. Derek is arrested and charged under §261(a). Derek argues that he didn't commit the crime because he and Virginia weren't on an actual “date” at the time of the sexual intercourse. Should he be convicted?    

Conclusion: As noted, “Date Rape” is indistinguishable from Rape. If anyone commits any version of the acts described in the statute, he or she is guilty. Derek used a threat (that Virginia's ailing father would be left unattended to) in order to get Virginia to have sex with him. Virginia, therefore, didn't want sex with Derek; she just wanted a ride to the supermarket. Derek was not married to Virginia when they had sex. Derek, therefore, should be convicted of raping Virginia though he and Virginia weren't on a “date.”

Sexual Battery

Sexual Battery (CPC §243.4(a)) occurs whenever anyone “touches an intimate part of another person while that person is unlawfully restrained.” The restraint can originate with you or an accomplice but it can only violate this Section “if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.”[42]

Since the prosecution can charge you with a Felony or a Misdemeanor, Sexual Battery is a “wobbler”[43] offense in California. The crime is related to Statutory Rape because a sex act with a minor can involve Sexual Battery, allowing the prosecution to charge you with both in the same trial.

If you're charged with the Felony form of Sexual Battery, the penalty may be:

  • A term of up to four (4) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[44] AND,
  • The duty to register as a Sex Offender for at least ten years.[45]

Note: “Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.”[46]

More information on Sexual Battery can be found on the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Sexual Battery

To convict you under CPC §243.4(a), the prosecution must prove the following beyond a reasonable doubt:

You or an accomplice unlawfully restrained someone and touched an intimate part of that person's body or made that person touch him- or herself or touch someone else. You also touched that person against his or her will and did it for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

Example:  A pediatric sports doctor, Defendant Dante, has a contract with a local youth softball league to provide regular checkups for its all-girl membership. Dante, however, uses the appointments to touch the girls on intimate parts of their bodies and becomes sexually aroused while he does so.[47] One player, Victim Vera, refuses to allow him to touch her. Dante forces her into restraints on his office examination bed. The struggle gets the attention of Vera's mother, who pushes her way into Dante's office and stops Dante. She calls police and reports him for violating §243.4(a). Should Dante be convicted of the crime?

Conclusion:  Dante used restraints to tie Vera onto his examination bed. He would've done so in order to touch Vera for his sexual pleasure. Vera didn't want to be touched by Dante. However, while Dante has committed Sexual Battery on a serial basis, in this case he didn't do it. The facts don't demonstrate that Dante actually got the chance to touch Vera on an intimate part of her body; Dante tied her down but he was prevented from going forward with the act by Vera's mother. Thus Dante should be acquitted.[48]

Lewd Conduct in Public

 

The crime of Lewd Conduct In Public (CPC §647(a)) occurs in California whenever a person touches him- or herself (or someone else) sexually in public. The touching must involve genitals, breasts, or buttocks. There must be someone who could be offended present and the defendant must know or suspect this.  

Actual touching is required to violate CPC §647(a). With the right facts, you can be charged with both Statutory Rape and Lewd Conduct in Public for having sexual intercourse with a minor in a public place.

If you're convicted of Lewd Conduct in Public, a Misdemeanor, the penalty may be:

  • A term in the county jail of up to six (6) months;[49] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[50]

Note: Section §647(a) doesn't require Sex Offender registration.

More information is available in the Lewd Conduct In Public section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer.   

California Jury Instructions – Lewd Conduct In Public

To convict you under §647(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully touched your - or another person's - genitals, buttocks, or (female) breast. You intended to sexually gratify yourself, or someone else, or to annoy or offend another person. At the time you did it, you were in a public place or a place open to public view and someone else who might be offended was present. Lastly, you knew or should've known that another person who might be offended was present.

Example: Defendant Danilo and Girlfriend go to a public beach and find what they think is an empty stretch of land. There are picnic tables on the other side of a nearby sand dune but no one's sitting at them. The couple begins to kiss. A man appears at the top of the dune sometime later. The man, who isn't offended, warns them that a group of people have sat at the tables before he exits. A few minutes later, a picnic goer, Victim Vanna, appears atop the dune and sees Danilo with his hand on Girlfriend's bare buttocks. Vanna calls police and reports Danilo for violating §647(a). Should Danilo be convicted?

Conclusion: Danilo willfully touched Girlfriend's bare buttocks in order to sexually gratify himself. Vanna, who was offended, saw the act on a public beach. Most importantly, however, Danilo learned of the presence of others when the man happened upon the couple and warned them about people at the picnic tables. While Danilo might've believed he and Girlfriend were alone when first they found the beach, he knew people were near when Vanna saw him touching Girlfriend. Danilo should be convicted.  

Indecent Exposure

California's law regarding Indecent Exposure (CPC §314) applies when any person exposes his or her naked body or genitals in front of anyone who could be annoyed or offended by it. While most people think it only happens in public, Indecent Exposure can happen in just about any environment. The exposure, however, must be willful and lewd.

Since Indecent Exposure can be charge as a Misdemeanor or a Felony, depending on the facts of your case, it's a “wobbler”[51] crime. The offense is related to Statutory Rape because Indecent Exposure can occur during a Statutory Rape, which permits the prosecution to charge you with both in the same trial.

If you're convicted of the Felony form of Indecent Exposure, the penalty may be:

  • A term of up to three (3) years in a state prison;[52] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment[53]; AND,
  • The duty to register as a Sex Offender for at least ten years.[54]

Note: “It is not required that another person actually see the exposed genitals.”[55]

More information is available in the Indecent Exposure section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls will go directly to a lawyer – and that's always guaranteed.

California Criminal Jury Instructions – Indecent Exposure

To convict you under CPC §314, the prosecution must prove the following beyond a reasonable doubt:

You intentionally exposed your genitals or naked body in front of someone who might be offended or annoyed by it. You intended to direct attention to yourself. Finally, you intended on sexually gratifying yourself or offending someone else when you did it.

Example: Defendant Davey, who lives near an all-night gas station, likes to dress in women's underwear and “streak” (run past the gas station) with his robe open. He does it several times, in each case exposing himself to an employee, Victim Vaughnie, who sees his clothes every time. She reports his license plate to the police, who identify Davey and arrest him as he's on his way past the gas station one night while wearing an ordinary T-shirt and jeans.[56] Davey is charged under CPC §314 but insists that he didn't violate the law because - though he admits he “got off on acting kinky” in front of Vaughnie - Davey didn't actually show his genitals or naked body to her. Should Davey be convicted of the charge?

Conclusion:  Davey ran past the gas station and exposed his bare buttocks to Vaughnie. He did so for his own sexual gratification (“he ‘got off on acting kinky' in front of Vaughnie”). That he “streaked” more than once to the same victim suggests that Davey wanted to be seen by Vaughnie when he exposed himself. He did these things willfully. Finally, Vaughnie was offended enough that she called the police with Davey's license plate number in order to stop Davey. However, “exposure of the body” requires more than wearing women's underwear; the body itself must be presented. Davey should be acquitted.

What Can I Do If I'm Charged With Statutory Rape?

The State of California regards Statutory Rape as a serious offense. If you're charged with Statutory Rape, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested or charged with Statutory Rape, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.

References

[1] See “Wobbler” definition at USLegal.com.

[2] “Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.].” See California Criminal Jury Instructions 1072 (CALCRIM) (2017).

[3] “Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.” See above.

[4] See In re T.A.J., Cal.Ct.App. 1st District, No. A076464 (1998) (Defendant, a sixteen-year-old minor who had sex with a fourteen-year-old, claimed on several bases that CPC §261.5(b) didn't prevent minors from having sex with minors; Ct. App. held for State).

[5] See California Criminal Jury Instructions 1072 (CALCRIM) (2017).

[6] See California Criminal Jury Instructions 1071 (CALCRIM) (2017).

[7] See California Criminal Jury Instruction 1070 (CALCRIM) (2017).

[8] See CPC §19.

[9] See CPC §1170(h)(1).

[10] See CPC §672.

[11] See CPC §261.5(d).

[12] See Endnote 10.

[13] See CPC §261.5(e)(1)(A).

[14] See CPC §261.5(e)(1)(B).

[15] See CPC §261.5(e)(1)(C).

[16] See CPC §261.5(e)(1)(D).

[17] See CPC §§261.5(e)(1)(A)-(D).

[18] See CPC §290.

[19] See CPC §288(a).

[20] See above.

[21] See §288(e).

[22] See CPC §§290(c), (d)(1)(A)-(5)(B).

[23] See California Criminal Jury Instructions (CALCRIM) 1110 (2017).

[24] See CPC §288a(a).

[25] See Endnote 1.

[26] See CPC §288a(b)(1).

[27] See Endnote 8.

[28] See Endnote 22.

[29] See California Criminal Jury Instructions 1082 (CALCRIM) (2017).

[30] See CPC §264(a).

[31] See Endnote 10.

[32] See Endnote 22.

[33] See CPC §667.5(c)(3).

[34] “Gender-specific language is used [in the jury instructions] because rape usually occurs between a man and a woman. In keeping with plain English principles, the committee used those terms to make the instruction clear and concrete.” See ‘Commentary,' California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[35] Facts paralleling a 1973 murder committed by serial killer Edmund Emil Kemper.

[36] The Murder charge is, of course, an entirely different matter.

[37] See Endnote 30.

[38] See Endnote 10.

[39] See Endnote 22.

[40] See Endnote 33.

[41] See Endnote 34.

[42] See CPC §243.4(a).

[43] See Endnote 1.

[44] See Endnote 42.

[45] See Endnote 22.

[46] See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[47] Facts paralleling the crimes of onetime USA Gymnastics physician Larry Nassar. See “Larry Nassar, former USA Gymnastics doctor, sentenced to 40-175 years for sex crimes” by Will Hobson. The Washington Post Online, January 24, 2018.  

[48] Dante would still be criminally liable for any other Sexual Battery, so long as the Statute of Limitations hadn't run on the charge(s), and he would be liable for Battery (CPC §242) on Vera (at minimum).

[49] See Endnote 8.

[50] See Endnote 10.

[51] See Endnote 1.

[52] See CPC 18(a).

[53] See Endnote 10.

[54] See Endnote 22.

[55] See California Criminal Jury Instructions 1160 (CALCRIM) (2017).

[56] Fact pattern approximates People v. Massicot, No. D035591, Cal.App.Ct., 4th Dist. (2002). (Defendant Massicot challenged finding that he had revealed his naked body to another when witness had seen only his bare buttocks; Ct. App. agreed with Defendant.)

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